CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                          Application No. 21361/93                       by Pakize GÖNENGIL                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 17 January 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 29 January 1993 by Pakize GÖNENGIL against Austria and registered under file No. 21361/93;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       25 November 1993, and the observations in reply submitted by the       applicant on 29 September 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Turkish citizen.   She is represented before the Commission by Mr. Wilfried Ludwig Weh, a lawyer practising in Bregenz.         The applicant was convicted in administrative criminal proceedings of not having had a valid visa during the period from 22 February 1989 to 19 September 1989.   A penal order was issued on 22 November 1990 by the Feldkirch District Authority by which the applicant was fined AS 700.00 plus costs, with 42 hours' detention in default.         The applicant's appeal to the Vorarlberg Security Directorate was rejected on 26 June 1991.         On 25 November 1991 the Constitutional Court rejected the applicant's constitutional complaint, and on 9 July 1992 the Administrative Court dismissed the applicant's administrative complaint.   The Administrative Court was not required to deal with the applicant's complaint that any proceedings should have been against the applicant's husband rather than against herself, but nevertheless noted that the cases on which the applicant relied related to different factual situations.   COMPLAINTS         The applicant alleges a violation of Article 6 of the Convention in that her conviction in administrative criminal proceedings was not accompanied by the requisite procedural guarantees, in particular that the Administrative Court was not a "tribunal" within the meaning of Article 6 para. 1 of the Convention         She also alleges a violation of Articles 5, 6 and 7 of the Convention taken together.   She considers it incompatible with the Convention that a person should be convicted for behaviour in circumstances where he cannot ascertain, even with appropriate advice, that that behaviour is unlawful.   PROCEEDINGS BEFORE THE COMMISSION         The Government's observations were submitted on 25 November 1993 and the applicant's observations in reply on 29 September 1994.   THE LAW   1.     The applicant alleges a violation of Articles 5, 6 and 7 (Art. 5, 6, 7) of the Convention.   She considers that there was in Vorarlberg at the relevant time a practice that administrative proceedings in respect of visa irregularities would be taken against the husbands of Turkish women, rather than against the women themselves.   She concludes from this that she was convicted of an offence which, in domestic practice at the time, was not applicable to her.         Article 7 (Art. 7) of the Convention provides, so far as relevant, as follows.         "1.   No one shall be held guilty of any criminal offence on       account of any act or omission which did not constitute a       criminal offence under national or international law at the time       when it was committed ..."         The Government consider that no such practice as alleged by the applicant existed in Vorarlberg or elsewhere in Austria.   The applicant has submitted a series of decisions which, she says, confirm the practice.   The decisions refer to cases in which the Austrian authorities accepted that minors should not be visited with administrative criminal liability as they were still under parental control, and to cases in which an immigrant was convicted of facilitating a contravention of administrative criminal law by permitting his wife and/or children to stay in Austria without a visa. None of them refers, even indirectly, to husbands being responsible, to the exoneration of their wives, for administrative offences.         The Commission finds that the applicant has produced no material to confirm the existence of the practice she alleges.   It therefore finds no substance in her arguments in this connection.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also alleges a violation of Article 6 (Art. 6) of the Convention.   The Government consider that the case does not disclose a violation of Article 6 (Art. 6).         The Commission has had regard to the facts of this complaint, to the parties' observations, and to the case-law of the European Court of Human Rights.   It finds that this part of the case raises questions under the Convention which cannot at this stage be rejected as being manifestly ill-founded, and which require to be determined on the merits.   No other ground of inadmissibility has been established.         For these reasons, the Commission, unanimously,         DECLARES INADMISSIBLE the complaint that the applicant was       convicted of an offence which did not exist, and         DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without       prejudging the merits of the case.     Secretary to the First Chamber         President of the First Chamber           (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)